PLANNING CASE UPDATE (including conservation areas)

1. PLANNING CASE UPDATE(including conservation areas) By CLARE PARRY 2-3 Gray’s Inn Square

2. AREAS COVERED • Conservation areas/listed buildings • Enforcement • S 215 notices. • Scope of appeal. • Change of use. • Breach of enforcement notice prosecutions. • LDC • S 187B injunctions. • Race equality duty • Procedure. • At committee. • On appeal. • High Court challenge. • Conditions precedent.

3. CONSERVATION AREAS • Lots of important developments this year. • Going to consider: • Derby County Council v Anthony • R (Arndale Properties) v Worcester City Council. • East Riding of Yorkshire Council v Hobson.

4. Derbyshire CC v Anthony • [2008] EWHC 895 • Club in Derby in state disrepair-surveyor’s recommendation to demolish. • Council served s.54 notice. • Once started work partial collapse. Applied for LB consent to demolish (said necessary for H&S). • Derby CC sought injunction under s 44A Planning (Listed Buildings and Conservation Areas) Act 1990.

5. Derbyshire CC v Anthony 2 • Wyn Williams: • Question of fact. • On the facts preferred Derbyshire CC’s evidence. • No urgent need on the grounds of risk to the public to require demolition (no immediate risk collapse of the balcony). • Decision on removal eventually was for planning inspector/ LPA.

6. R (Arndale Properties) v Worcester City Council • [2008] EWHC 678 • Case concerned cricket pavilion which was in poor condition. • Owners wanted to redevelop the area. • WCC sought unsuccessfully to have it listed. • Got committee to designate it as part of a conservation area. • Owners sought judicial review.

7. R (Arndale Properties) v Worcester City Council 2 • Sullivan J:- • Rejected that desire to have the pavilion listed was only the impetus. • LPA must identify following thorough assessment the special architectural and historical character of the area. • Existence of buildings of historic and architectural interest is not of itself sufficient. • Can’t use conservation area designation to prevent listing of a building.

8. East Riding of Yorkshire v Hobson • [2008] EWHC 1003 • Grade II listed (including stableblock). • Granted consent to undertake works to the stable block. • Works went significantly beyond what had consent for-wholly dismantled and reconstructed with some original bricks. • S. 7 1990 Act: “no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a listed building.” • Offence not to comply under s.9. • Charged with altering a building contrary to s.7. • Question was whether the alteration affected its character as a listed building. • Information just referred to the dismantling of the stable block, but judge considered character after rebuilding.

9. East Riding of Yorkshire v Hobson • Question was whether looked at just the dismantling, or whether looked at character after rebuilding. • Not open to the authority to prosecute at some interim stage and ignore rebuilding (window example). • Important to consider what works actually comprise of. • Didn’t accept would inhibit local authorities, “It is entitled to intervene at an early stage if the facts appear to justify it. But such action may well then give rise to a hearing before an Inspector or a court where the question will be whether the works would affect the special character of the listed building.”

10. ENFORCEMENT • Areas covered: • S 215 notices. • Scope of appeal. • Change of use. • Breach of enforcement notice prosecutions. • LDC • S 187B injunctions. • Race equality duty

11. Toni & Guy (South) Ltd v Hammersmith & Fulham LBC • [2009] EWHC 203 • Appeal by way case stated. • To do with who s. 215 (land adversely affecting amenity of the neighbourhood) notice should be served on. • Notice referred to the whole building, but steps to be taken only referred to the 1st floor and above. • Served on owners building and occupiers all floors. • Notice quashed-no power to serve it on the occupiers basement/ground floor as land occupied by them not adversely affecting amenity.

12. R (Perrett) v SSCLG • [2009] EWHC 234 (Admin) • Challenging refusal inspector to hold full rehearing. • C had previously successfully challenged inspector’s conclusions on ground A in high court. • No requirement in policy or law to hold full rehearing on all grounds (original hearing included many day’s worth of evidence). • Matter still had to be heard de novo on ground A (not just the part of the issue on ground A on which the notice was quashed).

13. R (Tendring DC) v SSCLG • [2008] EWHC 2122 • Planning permission for use as nursing home-condition preventing any other C2 use. • Enforcement notice alleged change to ‘institute for provision residential accommodation and care’. • Nursing home should be given natural meaning. • No bright line between C2 classes. • Not straining to say current use was a nursing home.

14. Goodall v Peak District National Park Authority • [2008] EWHC 734 • Appeal by case stated. • G convicted failure to comply with an EN • PDNPA served notice (1), withdrew because G out of country, served notice (2). • Again out of country, notice didn’t come to attention until it had taken effect. • No Article 6 issue. • Common law (including good faith) relevant • Conviction upheld.

15. Keith Barnett v SSCLG & East Hampshire • [2009] EWCA Civ 476 • Appeal against upholding of enforcement notices. • Question was whether a second permission had extended the curtilage dwelling. • Looked at what granted in second permission as a matter of fact and degree. • Pragmatic approach. • Upheld by CofA. • Difference between situations where applying for pp for house (where usually define curtilage) and extensions where already defined.

16. Sevenoaks DC v Harber • [2008] EWHC 708 (Admin) • Green belt/ AONB/ special landscape area. • Change of use to use for siting a caravan • Unsuccessful appeal. • Prosecution for failure to comply. • Defence-lack of gypsy sites-done everything he could-difficulty taking apart caravan. • No defence-have to be able to show it is not within own unaided powers to comply with notice-could have ceased living there unaided. • Irrelevant whether it would have been reasonable for him to have ceased living there.

17. Hillingdon LBC v (1) SSCLG (2) Autodex • [2008] EWHC 198 (Admin) • Inspector allowed appeal against refusal LBH to grant certificate lawful use and development. • Certificate for storage and ancillary purposes. • HC-no obligation to define how much could be stored or specify what meant by ancillary purposes in a certificate. • Relationship between s 57(4) and 191(2)

18. McCarthy v Basildon DC & Equality and Human Rights Commission • [2009] EWCA Civ 13 • EN against use as gypsy site-upheld on appeal. • Council proposing to enter and carry out works themselves (s. 178)‏ • Not in principle disproportionate to use that rather than s. 187B-court could consider whether proportionate on JR. • Approach to need for gypsy sites in report to committee too narrow. • No direct discrimination under Race Relations Act-indirect discrimination but justification based on same test as proportionality under Article 8. • Properly set out Race Relations duty in report to committee.

19. PROCEDURE • Areas covered: • Procedure at committee. • Bias/predetermination. • Planning appeals • Role inspector • Procedural unfairness • High court challenges. • Procedure on High Court challenges. • Strike out.

20. Persimmon Homes Teeside v R (App Lewis) • [2008] EWCA Civ 746 • Planning application considered in run up to a local election. • Although there is advice against this, Councillors don’t act quasi-judicially but in situation of democratic accountability. • Legitimate to approach with a pre-disposition to one side of the argument, for the court to consider if this gave rise to a real risk of closed minds.

21. R (Michael Gardner) v Harrogate BC & Atkinson • [2008] EWHC 2942 • Successful judicial review of planning permission on the grounds of bias. • Granted pp for house in AONB against officer recommendation for Councillor. • Chair planning committee (with casting vote) same political party as and shared lifts with applicant councillor.

22. R (Ortana) v SSCLG • [2008] EWHC 3207 • Rare case planning decision by inspector being quashed on appeal for bias. • Inspector had worked in planning department of main objecting County Council until 2003. • Planning inspectors were in the same position as judges. • There was a real possibility of bias.

23. Poole v SSCLG • [2008] EWHC 676 • Procedural unfairness. • Effect development on protected tree arose as issue at inquiry. • Council had failed to serve statement of case and agreed in statement common ground that not an issue . • Application for adjournment by appellant refused. • Appellant had no opportunity to call expert arbocultural evidence.

24. Coyle v SSCLG • [2008] EWHC 2466 • Application to strike out section 288 as disclosing no reasonable grounds. • Confirmed procedure appropriate, test analogous to test for permission in judicial review.

25. Bovale Ltd v SSCLG • [2009] EWCA civ 171 • At first instance Collins J had tried to introduce changes to section 288 procedure, to provide for entering defence. • Court of Appeal confirmed he could not change the rules in this way.

26. CONDITIONS PRECEDENT • Number cases trying to understand and apply Hart Aggregates. • 2 cases where it was held apparent condition precedents were not true conditions precedent: • Bedford BC v SSCLG [2008] EWHC 2304 • R (London & Stamford Investment Ltd) v Stoke-on-Trent City Council [2008] EWHC 2746 • One quite harsh case going the other way: • R (Casey) v Bradford MBC [2008] EWHC 2543